CRI/APN/323/2005

IN THE HIGH COURT OF LESOTHO

In the matter between:

HOLOMO KANE APPLICANT

VS

THE DIRECTOR OF PUBLIC PROSECUTIONS – RESPONDNET

RULING

Delivered by the Honourable Mrs. Acting Justice Mahase On the 21st day of July 2005

This is an application in which the petitioner, one Holomo Kane applies for release on bail.

The petitioner is awaiting trial in the Maseru Central Prison. He has been remanded into custody on a charge of armed robbery. He was remanded into custody on the 13th June 2005. That is the day when he was also joined as A2 in the

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said CR1 198/2005 Maseru Magistrate's Court. He has been in custody ever since that time.

Factors leading to the arrest and incarceration of the petitioner in the Maseru Central Prison are an armed robbery which allegedly occurred at the C-River Factory at or near Maseru.

The alleged armed robbery thereat occurred in or about the 1st June 2005. The alleged robbers, using a gun pointed same at one Serame Serame and they managed to take away the sum of M9,690.00 which was allegedly in the custody or possession of the said Serame Serame.

The application is being strongly opposed by the Respondent (D.P.P.).

Matters of common cause are that:

1. Petitioner is a Police Officer

2. That he was found and arrested by some of his colleagues while he was at his home/residence. And

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3. That the petitioner surrendered himself to the police on the 13th June 2005.

At the hearing of this application, Mr L. D. Molapo for the petitioner applied that the supporting affidavit filed by Mr Habasisa of the D.P.P's office be thrown out of the window and be disregarded by this court.

The reason for that application being that the said supporting affidavit was filed irregularly after the petitioner had already filed a replying affidavit. It was his contention that filing of the said affidavit after petitioner had replied was irregular and offended against the Rules of this court. Respondent did not object to that application, saying that their opposing affidavit would suffice.

This supporting affidavit was accordingly thrown out and this court will not consider its contents herein.

It is the petitioner's allegation that he has nothing to do with the alleged robbery. He knows nothing about same and denies ever having committed this crime.

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He also alleges that he was arrested and detained by some of his colleagues on a suspicion of having committed the crime of armed robbery. It is his further allegation that this group of some of his colleagues are those that he is not in good terms with. He was arrested at the beginning of June 2005.

His further story is that he was later taken to court for a remand but the magistrate declined to remand him on the contention that there was no evidence against the petitioner.

I must pause to observe that, the petitioner has not disclosed to court the date on which the magistrate so refused to remand him on the alleged grounds. There is no such minute of the magistrate on the copy of the charge sheet annexed herein. The only minutes on these court papers are the minutes for the 8/06/05 when Al (Petitioner's co-accused) was remanded and that of the 13/06/05 when A2 (petitioner herein) was joined and remanded to the 21/06/05 for set down.

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The petitioner further says that the magistrate observed that clearly the arrest and prosecution were malicious. He was then released. As I have said above, he is not supported herein by the minutes on the court record, i.e the copy of the charge sheet now before this court.

The learned magistrate would have certainly placed it on record in writing if she had indeed remanded the petitioner on his own recognizance. She would also definitely not have placed her signature on the remand form authorizing officer commanding the Maseru Central Prison to detain him while awaiting trial on this charge.

Also I take Judicial notice of the fact that the offence with which the petitioner stands charged is not bailable before the Magistrate's court. There was therefore no way in which the learned magistrate would remand him on his own recognizance. That would have been a misdirection on her

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part. But, as has been indicated above, the petitioner is not supported by the court record in this regard.

The petitioner's story is further that having been released he was again forcefully re-arrested by his colleagues and he was taken to court. On that undisclosed day he found that the prosecutor was not present. He says he was then in the hands of the colleagues with whom he was in good terms. These colleagues of him allowed him to go away to seek legal representation. This they did without him (petitioner) having been taken before court, to a magistrate.

It is his further story that the said colleagues with whom he was in good terms removed the handcuffs which he was tied with on his feet when he went to court.

He therefore alleges that he has not absconded and that is why he surrendered himself to the police on the 13th June 2005 when he was then taken to court and subsequently remanded into custody.

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I note that the petitioner has not mentioned the names of all his colleagues who arrested him at different times and dates in June 2005.

Neither has he been supported herein by any of the police officers who arrested him, took him to court and also later had him released without an order of court to that effect.

The petitioner has also in his papers, highlighted the court on the identification of him as one of the robbers of the complainant. He challenges its validity and says that he was not fairly treated and as such that identification parade was not fair.

He alleges t hat because he was arrested and kept in the police cell while wearing a police uniform, his said uniform was untidy, shabby and he too was unwashed. That as such he looked very different from his fellow colleagues who were paraded together with him, as a result it was no wonder that

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witnesses pointed out at him as the one who had robbed the complainant He also says, in addition those witnesses who pointed out at him already knew him because he used to go to their firm to investigate cases and later arrest people.

The petitioner has undertaken not to abscond; more particularly because he has a permanent and only job as a police officer. He alleges further that his continued detention places at risk his said job. He also has a 20 years old wife and a four month old baby all whom he has to take care of.

He has in paragraph 12 suggested the conditions of bail.

The crown is strongly opposing the application herein, as has earlier been indicated.

The grounds upon which it is opposing same are briefly as follows:

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1. That the petitioner has not, and contrary to the provisions of the Criminal Procedure and Evidence (Amendment) Act No 10/2002 set out the existence of exceptional circumstances justifying his release on bail.

2. There exists against the petitioner a strong prima -facie case coupled with the gravity or seriousness of the charged offence, which might induce the petitioner to abscond and not stand his trial.

It is the crown's argument that not only a strong prima-facie case exists against the petitioner herein, but also that, in addition, he has been positively identified by three witness at an identification parade and so he was placed at the scene of the crime by the said witnesses.

The crown therefore feels that, taking all the surrounding circumstances in this case, the petitioner is likely to abscond.

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The investigating officer No. 3529/D/TPR Mokhathi has, at paragraph 6 of his opposing affidavit specifically informed this court that the petitioner did actually run away from lawful custody on the day that he was taken to court for a remand.

This is an important piece of evidence which this court cannot over look. The petitioner, in an attempt to reply to same, has indeed confirmed that he left the court premises to go to his lawyer, but he had not been release by the magistrate. His story is that his colleagues with whom he was in good terms had released him to go away.

This he makes clear in his replying affidavit at paragraph 6.

It is common cause that it was on the 10th June 2005 when the petitioner so absconded. It was only after some three days that he resurfaced and surrendered himself to the police. He was bound to do so because he had learned that the police

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had been to his residence to look for him. He may have realized that there was no way of escaping from them.

I must mention that being a police officer, the petitioner understood very well why he was taken to court but decided to abscond on the pretext that his colleagues had released him. It was not his colleagues who had to release him but it was the court before which he would appear.

The story of the petitioner in this regard is found not to be reasonably possibly true and is rejected. I accept the version of the crown as being reasonably possibly true. Indeed the petitioner was remanded formally on this charge on the 13th June 2005 and not on the 10th June 2005. That goes to show that it was the petitioner herein who frustrated efforts to have him remanded on the 10th June 2005, together with his co accused.

I will not go into the issues pertaining to the identification parade and the existence or not of a strong prima-facie case.

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These issues will be dealt with during trial of this case. Presently they are not very relevant issues for purposes of this application.

Indeed in applications of this nature, the court, in exercising its discretion must seek to strike a balance between protecting the liberty of the individual and safe guarding the proper administration of Justice.

The fundamental consideration is the interests of justice. The question here is whether if released on bail, the petitioner will abscond thereby defeating the ends of justice. In the present application, there is evidence that on the 10th June 2005 when petitioner was taken to court for a remand, he absconded while the police who had escorted him to court were in the office of the District Public Prosecutor.

The petitioner's story that the District Public Prosecutor was not present and that he was allowed by his colleagues to go and obtain the assistance of a lawyer has already been

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rejected by this court as not being true. In any case even assuming for argument-sake that Mr Ntsamai was not in his office nor was not at work on that particular day, he is not the only Prosecutor who could handle this case. I take judicial notice of the fact that there are many other prosecutors thereat, but the petitioner left the court premises even before he was informed as to who would attend to his case in the absence of Mr Ntsamai. He should have waited until when he was formally released by the court.

Also one wonders why it took plus or minus two days for the petitioner to go back to the police by way of surrendering himself. If indeed he had been so released by his colleagues, contrary to the law, they should have agreed on the next time which be would go for a remand. As I have said, the petitioner re surfaced only after the police had gone out to look for him. How could they have gone around looking for the petitioner if indeed they had agreed to have him released?

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The petitioner has not denied that the said colleagues of his went around looking for him after he had absconded from the premises of the Maseru Magistrates court where he had been taken for a formal remand.

In any case his story holds no water and he has failed to convince this court that indeed it was his colleagues who had released him to go away before he was formally remanded. In any case the said colleagues of the petitioner have no powers nor a right to release a suspect who is being taken to court for a formal remand. They would have acted outside their powers if they had indeed done so. None of his said colleagues has supported him on this issue.

In the circumstances of this case, I have come to the conclusion that the crown has made out its case that if released on bail, the petitioner is not likely to stand trial but will abscond. The events of the 10th June 2005, have clearly indicated that the petitioner did abscond from the court

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premises and nothing has been placed before this court by the petitioner to rebut this allegation

This court has accordingly come to the conclusion that there are no exceptional circumstances placed before it by the petitioner for it to consider in this application.

The petitioner has failed to discharge the burden of proof ever so placed on him in bail applications to show that exceptional circumstances exist in his favour and that interests of justice will not be prejudiced.

The application is accordingly refused.

M. MAHASE

ACTING JUDGE

For Applicant: Mr L.V. Molapo

For Respondent: Mr Seitlheko.

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